Lawyering for Social Change

Fordham Urban Law Journal Volume 27 | Number Article 2000 Lawyering for Social Change Karen L Loewy Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation Karen L Loewy, Lawyering for Social Change, 27 Fordham Urb L.J 1869 (2000) Available at: https://ir.lawnet.fordham.edu/ulj/vol27/iss6/4 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History For more information, please contact tmelnick@law.fordham.edu LAWYERING FOR SOCIAL CHANGE Karen L Loewy* The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational selfgovernment is impossible Lawyers, as guardians of the law, play a vital role in the preservation of society.1 INTRODUCTION Lawyering for social change, often termed political lawyering, can be defined in many ways One definition of political lawyering construes the word "politics" in the classical sense of Plato and Aristotle, viewing it "as the art concerned with what it means to be a human being; what is the best life for a human being; and , the ways in which we can order our living together so that good human lives will emerge." Another definition focuses on the lawyer's ability to fight the status quo and to provide redress and representation to the voiceless.4 Lawyering for social change is "a form of advocacy that consciously [strives] to alter structural and societal impediments to equity and decency ' as the lawyer works to provide "legal representation to individuals, groups, or interests that historically have * J.D Candidate, Fordham University School of Law, 2000; B.A in Near Eastern and Judaic Studies and Music and certificates in Women's Studies and Legal Studies, Brandeis University, 1996 I would like to thank Professor Russ Pearce for his editorial comments on early drafts and the Stein Scholars Program for continued support Special thanks to David S Widzer for his endless love and encouragement ABA Model Code of Professional Responsibility, Preamble and Preliminary Statement (1981) in THOMAS D MORGAN & RONALD D ROTUNDA, 1998 SELECrED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter "Model Code"] This Note uses the terms "political lawyering," "lawyering for social change" and "social change lawyering" interchangeably Peter M Cicchino, To Be A PoliticalLawyer, 31 HARV C.R.-C.L L REV 311 (1996) See Preface to Symposium, Political Lawyering Conversations on Progressive Social Change, 31 HARV C.R.-C.L L REV 285 (1996) Id at 285 1869 1870 FORDHAM URBAN LAW JOURNAL [Vol XXVII been unrepresented in our legal system, or who are fighting the established power or the established distribution of wealth."' Social change lawyering refers to those "lawyers whose work is directed at altering some aspect of the social, economic and/or political status quo" and who believe that current societal conditions obstruct the full participation of and sufficient benefits to subordinated people Professor Martha Minow also suggests that political lawyering "involves deliberate efforts to use law to change society or to alter allocations of power." She examines the meanings of "law," ".social" and "change," noting that "law" encompasses both the formal rules promulgated by the various branches of government and the customs of authority and opposition that have arisen both around and outside of the public institutions intended to change those rules.' "Social" connotes the essential links between politics and culture through which people shape their awareness of and ambitions for society, and the arenas for deliberation over what morality and economic justice should require.10 Finally, she posits that "'[c]hange' includes not only specific, discrete alterations, but also processes of renovation and continuing challenge of the status quo.' This Note explores the significance, legitimacy and methodology of lawyering for social change Part I examines the lawyer's motives for entering into this work, as well as notions of how the lawyer's role affects her work for social change This Part also explores theoretical approaches toward political lawyering and the methodologies employed to effect change Part II examines whether it is justifiable for a lawyer to drive social change, taking into consideration the ramifications of different images of the lawyer's role and the dangers of a lawyer's working to further social Debra S Katz & Lynne Bernabei, Practicing Public Interest Law in a Private Public Interest Law Firm: The Ideal Setting to Challenge the Power, 96 W VA L REV 293, 294-95 (1993-94) Louise G Trubek, Embedded Practices: Lawyers, Clients, and Social Change, 31 HARV C.R.-C.L L REV 415 n.2 (1996) Martha Minow, Political Lawyering: An Introduction, 31 HARV C.R.-C.L L REV 287, 289 (1996) See Martha Minow, Law and Social Change, 62 U Mo KAN Crry L REV 171, 176 (1993) [hereinafter Minow, Law and Social Change] 10 See id at 182 Minow rejects the strict dictionary definition of "social" - "'of or relating to human society"' - as too vague, claiming that within the context of law and social change, "social" is often treated too narrowly Id at 176 n.30 (citing WEBSTER'S THIRD NEW INT'L DICTIONARY 2161 (1967)) 11 Id at 182 20001 LAWYERING FOR SOCIAL CHANGE 1871 change, particularly regarding the lawyer-client relationship and anti-majoritarian uses of the courts This Part also examines arguments for the legitimacy of this enterprise stemming from the role of the law as an expression of societal values and from the unique access lawyers have to the legal system Part III argues that it is entirely legitimate for a lawyer to engage in work for social change in order to ensure that the rights of all people are protected This Part addresses the objections raised to political lawyering, concluding that these objections can either be overcome through various lawyering techniques or can be counterbalanced by the need to ensure protection of legal rights In addition, this Part puts forth a model of lawyering that incorporates moral activism with a flexibility of ideology and technique, allowing the lawyer to work for the greater good THE LAWYER'S ROLE AND TECHNIQUE IN WORKING FOR SOCIAL CHANGE General definitions of the endeavor of lawyering for social change not really explain why working for social change is specifically an activity for lawyers These definitions not directly address the historical context of and the varied reasoning behind the field of lawyering for social change They not address the nuances of different models of the lawyer's role They not indicate how a lawyer can actually accomplish this goal This Part examines different conceptions of the lawyer's role, focusing on the notions of lawyers as a governing class and of lawyers as moral activists, in order to illuminate the lawyer's motivations for working for social change It then explores the theories underlying the use of these models and the use of particular types of efforts in achieving true change The Lawyer's Role - Or Why It Is a Lawyer's Job to Do This Work At All The moral doctrines that regulate the legal profession discuss and promote the lofty ideals of informed democracy and the autonomy of every human being.12 The professional responsibility codes exhort lawyers to protect the system that safeguards individual rights in order to preserve societal values 13 Lawyers have an obliA 12 See Preamble & Preliminary Statement to Model Code, supra note 13 See id.; see also Preamble to ABA Model Rules of Professional Conduct, A Lawyer's Responsibilities (1997), in THOMAS D MORGAN & RONALD D ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter 1872 FORDHAM URBAN LAW JOURNAL [Vol XXVII gation to work for the betterment of the legal system and have a unique role as "guardians of the law."1 These ideals would seem to appeal to the moral center of every lawyer's soul, yet the codes promote a role of the lawyer that only addresses one conception of lawyering - that of lawyers as a governing class This image views lawyers as a noble assembly that works for the people out of a5 sense of duty stemming from their superior skills and judgment.' Other images of a lawyer's role, however, promote a different focus The moral activist model envisions lawyering as a principled6 endeavor inextricable from the lawyer's own personal morality.' Lawyers enter into their role out of a sense of what is moral and right and are held morally accountable for their actions.' This section explores these notions and how they motivate lawyers to engage in political lawyering The Governing Class In 1905, Louis D Brandeis addressed undergraduates at Harvard, lamenting the general neglect among lawyers of their ob"Model Rules"] (noting that a lawyer has a duty to uphold the legal process and that lawyers "play a vital role in the preservation of society."); Preamble to ABA Canons of Professional Ethics (1908), inTHOMAS D MORGAN & RONALD D ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter "ABA Canons"]; Preamble to ABA Torts and Insurance Practice, Lawyer's Creed of Professionalism (1988), inTHOMAS D MORGAN & RONALD D ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) ("As a lawyer, I must strive to make our system of justice work fairly and efficiently.") 14 Preamble & PreliminaryStatement to Model Code, supra note 15 See, e.g., GEOFFREY HAZARD, JR ET AL., THE LAW AND ETHICS OF LAWYERING 1086 (2d ed 1994); Louis D Brandeis, The Opportunity in the Law, 39 AM L REV 555 (1905); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 102-12 (Henry Reeve trans., 3d ed 1838) See generally JEROLD S AUERBACH, UNEQUAL JUSTICE: (1976) (examining the responses of elite lawyers to social change in the twentieth century) 16 See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 160-74 LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1988) [hereinafter LUBAN, LAWYERS AND JUSTICE] (discussing throughout part I the difficulties inherent in the adversary system and advocating a system of lawyer accountability); David Luban, The Social Responsibility of Lawyers: A Green Perspective, 63 GEO WASH L REV 955 (1995); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 VAND L REV 717 (1988) [hereinafter Luban, Noblesse Oblige]; Paul R Tremblay, PracticedMoral Activism, ST THOMAS L REV (1995); Deborah L Rhode, Ethical Perspectives on Legal Practice,37 STAN L REV 589, 64345 (1985); MARK V TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, CIVIL RIGHTS]; David R Esquivel, Note, The Identity Crisis in Public Interest Law, 46 DUKE L.J 327 (1996); Janine Sisak, Note, Confidentiality, Counseling, and Care: When Others Need to Know What Clients Need to Disclose, 65 FORDHAM L REV 2747, 2759-61 (1997) 17 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 160 20001 LAWYERING FOR SOCIAL CHANGE 1873 ligation "to use their powers for the protection of the people.' 18 Brandeis raised a call for more "people's lawyers,"19 encouraging lawyers to fulfill the obligation created by their specialized training and highly defined sense of judgment.2 He believed that the lawyer's aptitude for abstract thought and empirical astuteness, her ability to reach conclusions in real time, her keenly honed judgment of people, her tolerance and her practical attitude constituted a unique composite of traits that perfectly suited the lawyer for public life.2 He recognized that lawyers enjoy a social status resembling that of a noble class, noting Alexis de Tocqueville's earlier reference to lawyers as an American aristocracy.22 This model of lawyering traces the lawyer's obligation to serve the people to this elevated position 23 The governing class notion posits that because legal education and training emphasize objective reasoning and decision-making, lawyers are better equipped to struggle with the matters of democracy.24 Further, the lawyer's own interests are 18 AUERBACH, supra note 15, at 34-35 (citing Brandeis, supra note 15) 19 Brandeis' notion of "people's lawyers" stemmed from his belief that lawyers had a duty to use their ability and authority to protect the greater good "The great opportunity of the American bar is and will be to stand again as it did in the past, ready to protect also the interests of the people." Brandeis, supra note 15, at 559-60 He proposed that in order to rectify the legal profession's slant toward representing the wealthy, lawyers should advise the large private interests in their private practice, but should also pursue public sector responses to the inequities that result from that slant See id at 562-63 20 See id 21 See Luban, Noblesse Oblige, supra note 16, at 720-21 22 See id at 718-19 (citing DE TOCQUEVILLE, supra note 15, at 102-12) De Tocqueville, having visited the United States, viewed lawyers as an aristocracy, wielding an inordinate amount of power over the dealings of society See DE TOCQUEVILLE, supra note 15, at 102-12 De Tocqueville proposed that lawyers, like aristocrats, have a duty higher than mere commercialism and through their public lives, assume responsibility for the common good, that the common good will be attained by decreasing the tyranny of the majority and quelling social freedoms in the name of order, that this will be accomplished by restraining the people, and that lawyers are particularly adapted for this type of work by their training and mental propensities See Luban, Noblesse Oblige, supra note 16, at 719 (citing DE TOCQUEVILLE, supra note 15, at 271- 76) 23 See Brandeis, supra note 15, at 560 24 See Russell G Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, GEO J LEGAL ETHICs 241, 253 (1992) [Lawyers] have a responsibility "to serve as a policy intelligencia and to use the authority and influence deriving from their public prominence and professional skill to create and disseminate, both within and without the context of advising clients, a culture of respect for and compliance with the purposes of the laws." Id at 253 (quoting Robert W Gordon, The Independence of Lawyers, 68 B.U L REV 1, 14 (1988)) 1874 FORDHAM, URBAN LAW JOURNAL [Vol XXVII completely divorced from this endeavor, as the lawyer's duty is to promote the common good.25 This image of lawyering pervaded legal culture for years, and to some extent, still does.26 The Moral Activist Another image of the lawyer's role is that of moral activism The moral activist views lawyering as a principled endeavor, seeing attorneys as morally accountable for the legal principles they advocate.27 Professor David Luban describes moral activism as "a vision of law practice in which the lawyer who disagrees with the morality or justice of a client's ends does not simply terminate the relationship, but tries to influence the client for the better ' 28 Law29 yers would decline or withdraw from cases they deem unjust 25 See id (tracing the historical roots of the ethical codes to the work of George Sharswood) [A] lawyer's principle obligation was the republican pursuit of the community's common good even where it conflicts with either her client's or her own interests Sharswood defined the common good as the protection of order, liberty, and property in order to provide individuals with the opportunity to perfect themselves Id at 241 26 See HAZARD, supra note 15, at 1086; AUERBACH, supra note 15, at 307-08; Pearce, supra note 24; see also Model Code, supra note 1, EC 8-1 ("By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein."); Preamble to Model Rules, supra note 13 (linking the lawyer's duty to improve the legal system itself and the access of the powerless to that system to the lawyer's place in society and in the legal profession) As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf Preamble to Model Rules, supra note 13 27 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 160-61 28 Id at 160 29 See id.; see also Model Rules, supra note 13, Rule 1.16(b) (stating that unless ordered to so by a tribunal, "a lawyer may withdraw from representing a client if a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent"); Model Code, supra note 1, EC 2-26 ("A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become his client[.]"); EC 2-30 ("[A] lawyer should decline employment if the intensity of his personal feeling, as distinguished from a community attitude, may impair his effective representation of a prospective client."); ABA Canons, supra note 13, Canon 31 ("Responsibility for Litigation") 2000] LAWYERING FOR SOCIAL CHANGE 1875 Lawyers derive motivation from their personal determinations of what is right and good Their actions come from their own notions of justice and morality rather than from any duties they owe An example of moral activism lies in the work of Charles Hamilton Houston' and Thurgood Marshall 3' in the civil rights movement.32 Houston described the type of lawyering he performed as "social engineering ' 33 This model advocates that "[a]s social engineers, lawyers [have] to decide what sort of society they [wish] to construct, and use the legal rules at hand as tools '3 Social engineering involves a moral decision about the types of battles worth fighting, followed by the utilization of all the tools at a lawyer's disposal, including the rules of the courts and an awareness of the social setting in which the law operates 35 Houston and Marshall's civil rights crusade stemmed from their own very personal desires to fight discrimination against African Americans.36 They aimed to solve what they saw as crucial social problems.37 This No lawyer is obligated to act either as adviser or advocate for every person who may wish to become his client He has the right to decline employment Every lawyer upon his own responsibility must decide what employment he will accept as counsel, what causes he will bring into Court for plaintiffs, what cases he will contest in Court for defendants ABA Canons, supra note 13, Canon 31 30 See Steven H Hobbs, From the Shoulders of Houston: A Vision for Social and Economic Justice, 32 How L.J 505 (1989) Charles Hamilton Houston was a prominent civil rights attorney, special counsel for the NAACP, and professor and dean of Howard University School of Law He worked with Thurgood Marshall on a wide range of landmark civil rights cases See id at 506 31 Thurgood Marshall was a prominent civil rights attorney, working as staff attorney for the NAACP Legal Defense and Education Fund, before serving as a judge and eventually becoming the first African American Justice on the United States Supreme Court See TUSHNET, CIVIL RIGHTS, supra note 16; Mark V Tushnet, The Jurisprudenceof Thurgood Marshall,1996 U ILL L REV 1129, 1131 (1996) [hereinafter Tushnet, Thurgood Marshall] 32 See Tushnet, supra note 16, at 4-5; Hobbs, supra note 30 33 See TUSHNET, CIVIL RIGHTS, supra note 16, at 34 Id 35 See id Tools used by political lawyers include, among others, impact litigation, legislative advocacy, public education, media initiatives, monitoring governmental policies and building coalitions See, e.g., About NOW LDEF (visited Feb 25, 2000) ; About the NAACP Legal Defense Fund (visited Feb 25, 2000) 36 See Hobbs, supra note 30, at 509-12; TUSHNET, CIVIL RIGHTS, supra note 16, at 4-5 37 See Tushnet, Thurgood Marshall,supra note 31, at 1141 Tushnet critiques the notion of social engineering as stemming from the governing class idea of lawyers having specialized knowledge unavailable to the public This Note suggests, however, that Tushnet mischaracterizes Marshall's utilization of the social engineering model, suggesting that Marshall's personal motivations prevent the assignation of this model to the governing class 1876 FORDHAM URBAN LAW JOURNAL [Vol XXVII conception of moral activism, while originating in the civil rights movement, continued through the women's, gay and lesbian, and poverty rights movements, among others, encouraging lawyers to use the legal tools at their disposal to work toward these moralitydriven goals B The Models and Methodologies of Lawyering for Social Change The techniques employed in lawyering for social change vary greatly One achieves success with a multitude of strategies and efforts This section explores the theoretical and methodological strategies lawyers may use in working for social change Theoretical Models of Lawyering for Social Change Three ways of approaching the achievement of social change are the notions of "cultural shift," "negotiation of strategy" and "dimensional lawyering." These views are not mutually exclusive, but they are informed by different underlying ideologies a Cultural Shift The creation of a cultural shift is one view of the way to make true social change 39 Professor Thomas Stoddard suggests that social change and legal change are not always coexistent, that one does not always prompt the other.4' Furthermore, attempts at law reform may only succeed on a formal level and may not have any real impact on the larger cultural context into which they fit 41 The law's traditional mechanisms can be adapted, however, to improve society in extra-legal ways This use of42 the law is what Stoddard calls the law's culture-shifting capacity A cultural shift may take place when far-reaching or significant change occurs, public awareness of that change is widespread, the public generally perceives that change as legitimate or valid, and there is continuous, overall enforcement of the change 43 One theory perhaps underlying the notion of cultural shift and its belief that all of these components must occur contemporaneously is that 38 See MARTHA F DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT, 1960-1973 (1993) 39 See Thomas B Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U L REV 967 (1997) 40 See id at 972 41 See id 42 See id at 973 43 See id at 978 2000] LAWYERING FOR SOCIAL CHANGE 1877 lawyers may not be able to divert the direction of a rule of law very far off course from the beliefs of elected officials." Without the support of the general public and the enforcement of the change, change cannot really occur To make major changes in critical social relationships, one must change the way people think about the issue.45 A new law that affects a large number of people in fundamental ways creates the potential for culture shifting For the shift to have cultural resonance, however, the general public must also perceive the shift It must be "generally discerned and then absorbed by the society as a whole." 47 This common awareness must also be accompanied by some sense of public acceptance grounded in a sense of legitimacy or validity, as awareness is never enough to assure compliance.48 Finally, unless the rules are enforced, the public will disregard them Unless a new law promotes public awareness and adherence to the rules, as well as provides appropriate sanction for their disregard, culture-shifting cannot occur.49 Professor Nan Hunter suggests an additional requirement for a true cultural shift.50 She posits that in addition to the four requirements listed above, some type of public engagement in the effort to change the law must occur When a change stems from a mobilized public demand, whether through litigation or legislation on state or federal levels, the resulting change has an immediate culture-shifting impact.5 She thus places great emphasis on mobilization and empowerment of those seeking legal assistance, and strengthening the represented constituency or community organization.53 This empowerment is valuable because the constituent community will work toward larger, more fundamental change, viewing the law as a tool to accomplish this change as opposed to 44 See James Douglas, The Distinction Between Lawyers as Advocates and As Activists; And the Role of the Law School Dean in Facilitatingthe Justice Mission, 40 L REV 405, 407 (1992) 45 See id CLEV ST 46 See Stoddard, supra note 39, at 978 47 Id at 980 48 See id at 982-83 (stating that "'[c]ulture-shifting' can never take place in an atmosphere of resistance It requires, at a minimum, an aura of moral and cultural legitimacy to sustain widespread adherence to any new code of conduct.") 49 See id at 986-87 50 See Nan D Hunter, Lawyeringfor Social Justice, 72 N.Y.U L REV 1009, 1019 (1997) 51 See id 52 See id at 1020 53 See id 1888 FORDHAM URBAN LAW JOURNAL [Vol XXVII of a lawyer to zealously represent her client 130 As a result, a lawyer is precluded from engaging in social activism.1 ' He submits that because a true social activist operates from emotion-based motives, it is less likely that the lawyer will have the objectivity required to fully explore her opponent's perspective and that without 132 this ability, she cannot adequately represent her client Anti-Majoritarian Use of the Courts Another objection to lawyering for social change stems from the perception that it is a way of permitting the courts to supercede the democratic process These concerns are based on the idea that "[i]t is wrong for groups that are unable to get what they want through ordinary democratic means (pressure-group politics, the legislative process, electing an executive who does things their way) to frustrate the democratic will by obtaining in court what they cannot obtain in the political rough-and-tumble.' ' 33 Those supporting this view see clear divisions of labor among the branches of government The lawyer's job is to litigate rather than to seek legislativelike change through the court system.13 Courts should assume a finite position in a democratic system 35 When lawyers ask judges to legislate social policy, they are replacing the will of the people with their own In furtherance of the lawyers' defined role in the democratic process, Douglas asserts that "a lawyer's role in society is not to change the rules of the game, but to assist in maintaining the rules and to help resolve conflicts under the established rules."'1 37 Douglas is concerned that political lawyers' focus on altering the social order rather than on the legal system can be detrimental to the client.' 38 He suggests that lawyers should work within the given 130 131 132 133 134 See Douglas, supra note 44, at 405 See id at 407 See id at 405 LUBAN, LAWYERS & JUSTICE, supra note 16, at 303 See Tushnet, Thurgood Marshall, supra note 31, at 1144 (citing DAN, MACHINE-AGE IDEOLOGY: SOCIAL ENGINEERING AND ALISM, 1911-1939 (1994)) 135 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358 JOHN M JORAMERICAN LIBER- 136 See id 137 Douglas, supra note 44, at 406 138 See id at 405-06 Social activists are not concerned with the rule of law; they are, instead, concerned with changing society and the way members of society interrelate with each other The social activist is therefore, more likely to breach the rule if to so might result in the accomplishment of the desired goal, a change in society 2000] LAWYERING FOR SOCIAL CHANGE 1889 legal contexts, rather than try to change those contexts The creation of this change is a task for activists, not lawyers The lawyer's task is to describe and maintain the rules that result from the 39 changes in thought prompted by the action of activists B Proponents of Lawyering for Social Change Scholars who support lawyering for social change advance two main reasons why this position is legitimate The first relates to the nature of the law as an articulation of social morality, and the second regards the structure of the legal system and the right of all people to gain access to justice Law As An Articulation of Social Morality According to some scholars, using the law to effect social change is well within the lawyer's authority because the law reflects society's morals and standards 40 Stoddard notes that "[t]he law is not now, and never has been, simply a set of formal rules; it is also the most obvious expression of a society's values and concerns, and it can and ought to be used to improve values and concerns."'' As a result of this vision of law as a tool for the betterment of society, groups seeking social change have always turned to the law for its promises of due process and equal treatment 42 Some scholars view political lawyering, therefore, as a logical extension of the lawyer's personal commitment to social change For example, Professor Gary Bellow says, "Political lawyering simply describes a medium through which some of us with law training chose to respond to the need for change in an unjust world."' 43 He notes further: Social vision is part of the operating ethos of self-conscious law practice The fact that most law practice is not done self-consciously is simply a function of the degree to which most law practice serves the status quo The kind of political lawyering [I have practiced] is distinguishable from general law work by the degree to which it was fueled by a more dissatisfied and change-oriented self-consciousness than the law practice of most Id 139 See id at 407 140 See Stoddard, supra note 39 141 Id at 971 142 See Jane E Larson, Introduction: Third Wave - Can Feminists Use the Law to Effect Social Change in the 1990s?, 87 Nw U L REV 1252, 1252 (1993) 143 Gary Bellow, Steady Work: A Practitioner'sReflections on PoliticalLawyering, 31 HARV C.R.-C.L L REV 297, 309 (1996) 1890 FORDHAM URBAN LAW JOURNAL [Vol XXVII of our contemporaries It seems enough here to say that "vision-making" work is fundamental to the activist strategies 144 political lawyering inevitably embodies Lawyers engaged in this work thus use the law to advance their own visions of an ideal society in furtherance of the notion that the law serves as a reflection of societal values Structure of the Legal System Another reason presented for the validity of this work lies in the unique role that lawyers play in the legal system 145 Luban notes: It is an obvious fact , that all of our legal institutions , are designed to be operated by lawyers and not by laypersons Laws are written in such a way that they can be interpreted only by lawyers; judicial decisions are crafted so as to be fully intelligible only to the legally trained Court regulations, court schedules, even courthouse architecture are designed around the 46 needs of the legal profession Lawyers thus retain a monopoly on legal services 147 This legal structure obligates lawyers to work for those in need, not merely because of the demand for public services, but because of the implicit right to "Equal Justice Under Law.' 48 The notion that all 144 Id at 301-02 145 See LUBAN, LAWYERS AND JUSTICE, supra note 16 146 Id at 244 Some would argue that the response to this problem should be the de-regulation of the legal profession See, e.g., LUBAN, LAWYERS & JUSTICE, supra note 16, at 269-77; see also Russell G Pearce, The Professionalism Paradigm Shift: Why Discarding ProfessionalIdeology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U L REV 1229 (1995) (noting the transformation of law practice from a profession to a business, and suggesting reforms such as permitting nonlawyers to practice and substituting market and government regulation for self-regulation) This Note does not address the merits of this claim, but the de-regulation of the legal system is unlikely to happen any time soon Until it does, this Note proposes that political lawyering is the best option to ensure that every person has access to the court system 147 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 286 Lawyers retail a commodity manufactured by the state: law They have, moreover, been granted a monopoly on it, in several ways :through unauthorized practice regulations, through the fashioning of laws and regulations, through the erection of a professionalized system designed in large part around the needs of the law retailers The adversary system itself is predicated on the monopoly of lawyers Id 148 See id at 248-57 Luban defines this right as implicit, meaning rights granted "by the rules of the game," rather than moral, meaning those rights without which a person is "a mere thing and not a moral agent." Id at 248-49 "Equal Justice Under Law" is carved above the entrance to the United States Supreme Court building See Nadine Strossen, Pro Bono Legal Work: For the Good of Not Only the Pub- LAWYERING FOR SOCIAL CHANGE 20001 1891 people should be afforded equal justice is one of the fundamental legitimizing principles of the American legal system 14 This principle implies equal political rights, such as consent to governance, as well as equality of legal rights, meaning that every person has a right to legal redress of injuries through the court system.' 50 To gain this access, however, requires the help of lawyers In order to sustain the legitimacy of the legal system, lawyers must guarantee that legal services are available to all that need them 51 Given these justifications for providing legal services to those otherwise lacking access to them, Luban argues further that representing these clients in a politicized manner in an attempt to reform laws, to further socio-political goals or to alter the social order is also justified.1 52 He argues that "on the basis of an adequate theory of democracy, impact work, including class-action suits, lobbying, and organizing by public interest lawyers, is a boon to democratic politics Impact work deserves not just toleration but support by a community dedicated to a democratic way of life."1'5 m THE WORK OF LAWYERING FOR SOCIAL CHANGE Having explored the scholarship regarding political lawyering, this Part argues that lawyering for social change is entirely legitimate Further, this Part proposes ideological and methodological models for engaging in such work A Lawyering for Social Change is Legitimate Despite various objections to the endeavor of lawyering for social change, this Note advocates that it is in fact a legitimate enterprise The notions of the law as a reflection of social morality and the role of the lawyer in the legal profession support the lawyer's engaging in this type of work 154 In addition, the concerns posited by opponents of political lawyering can be assuaged by taking measures to level power differentials between lawyers and clients and by examining the exceptions to the usual functioning of the democratic system lic, But Also the Lawyer and the Legal Profession, 91 (1993) 149 150 151 152 153 154 MICH L REv 2122, 2139 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 252-56 See id at 251-55 See id Id at 238 See generally id at 293-391 Id at 304 See supra Part II.B 1892 FORDHAM URBAN LAW JOURNAL [Vol XXVII Responses to Concerns About Client Manipulation Many arguments raised by opponents of social change lawyering based on the effect of this type of lawyering on the lawyer-client relationship can be overcome by an examination of applicable legal standards As a threshold matter, recruiting clients for social justice activities constitutes wholly legitimate action.' 55 The U.S Supreme Court has recognized that solicitation in furtherance of social justice causes deserves First Amendment protection because it is a form of political expression 156 The usual concerns regarding solicitation and advertising focus on attorney pecuniary interest that are not present when these activities are carried out by organizations whose primary goal is to raise and explore social justice issues 57 Concerns over exploitation of these solicited clients can be addressed by full disclosure of the essential implications, risks and uncertainties involved, as well as the political goals of both the lawyer and the client 58 The resulting work must be the product of mutual understanding, information sharing and effort on the parts of both lawyer and client.' 59 As Luban points out, there are several reasons why a plaintiff may have to be recruited, including ig155 See In re Primus, 436 U.S 412 (1978) (holding that solicitation of prospective clients by legal organizations whose primary purpose is to meet political aims constitutes expressive and associational conduct that is entitled to First Amendment protection, thus exempting a lawyer engaging in these activities from disciplinary action) 156 Id at 428 (noting that for the ACLU, "'litigation is not a technique of resolving private differences'; it is 'a form of political expression' and 'political association."' (quoting NAACP v Button, 371 U.S 415, 429, 431 (1963))); see also NAACP v Button, 371 U.S 415 (1963) (holding that the activities of the NAACP constitute modes of expression and association which are protected by the First and Fourteenth Amendments, thus exempting them from the Virginia prohibitions on solicitation) In Button, the Court held that the solicitation of potential clients in order to further the civil rights goals of the NAACP was within the right "to engage in association for the advancement of beliefs and ideas." Button, 371 U.S at 430 (quoting NAACP v Alabama, 357 U.S 449, 460 (1958)) 157 See Primus, 436 U.S at 429-431, 434-37 The Court held that the other traditional concerns regarding solicitation and barratry, including undue commercialization of the legal profession, are absent when a non-profit organization offers free legal services See id at 437 The Court noted, further, that as the ethical codes impose an obligation to serve the public interest, the ethical rules have traditionally exempted solicitation via offers of free representation to those with limited ability to obtain legal service on their own from the general bans on solicitation See id at 437 n.31 See also Button, 371 U.S at 440-41 (noting that "regulations which reflect hostility to stirring up litigation have been aimed chiefly at those who urge recourse to the courts for private gain, serving no public interest" and that "[o]bjection to the intervention of a lay intermediary also derives from the element of pecuniary gain") 158 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 318 159 See id 20001 LAWYERING FOR SOCIAL CHANGE 1893 norance on the part of potential plaintiffs that they are victims of illegal actions, the high cost of hiring lawyers for law reform activi16° ties and the difficulty of litigating against large institutions Whether the lawyer recruits the client or the client seeks out the lawyer is inconsequential so long as161the client is fully informed and willing to undertake the litigation The response to concerns about client manipulation lies in taking measures to level the potential power differential between the lawyer and the client, thereby helping to avoid the feared manipulation, and engaging in collaborative moral discourse As mentioned previously, the use of a client-centered model of lawyering does not always work effectively in social justice settings 162 It may not be necessary to eliminate all aspects of this model, however It is crucial to provide the client with as much information as possible to aid in decision-making, but, as Bellow notes: [T]he practice of law always involves exercising power Exercising power always involves systemic consequences, even if the systemic impact is a product of what appear to be unrelated cases pursued individually over time Lawyers influence and shape the practices and institutions in which they work, if only to reinforce and legitimate them Clients, similarly, bring to their legal advisers and representatives claims and concerns that institutional arrangearise from and are examples of underlying 63 ments and culturally created controls This raises the question of how to avoid exploiting this power differential Bellow addresses the potential for a lawyer's abuse of power, particularly where the clients being served are in some way vulnerable, and recognizes that choice is never equally allocated in any client-lawyer venture 64 These power concerns can be addressed by employing some method of collaborative lawyering,' 65 entering 160 See id 161 See id 162 See supra text accompanying notes 109-125 163 Bellow, supra note 143, at 301 164 See id at 302 165 See, e.g., Anthony V Alfieri, PracticingCommunity, 107 HARV L REV 1747 (1994) [hereinafter Alfieri, Community]; Anthony V Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J 2107 (1991); Anthony V Alfieri, The Antinomies of Poverty Law and a Theory of Dialogic Empowerment, 16 N.Y.U REV L & Soc CHANGE 659 (1987-88) [hereinafter Alfieri, Antinomies]; Anthony V Alfieri, Speaking Out of Turn: The Story of Josephine V., GEO J LEGAL Emics 619 (1991); GERALD LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACrICE (1992); White, To Learn & 1894 FORDHAM URBAN LAW JOURNAL [Vol XXVII into alliances with clients based on mutual commitments and influence, with the respect and mutuality that such relationships entail counterbalancing some of the skewed power issues 166 Collaborative lawyering aims to obscure the differences between lawyers and lay people and between legal and non-legal tasks, as well as to politicize the clients' efforts and involve the lawyer heavily in the client's work 67 Lawyers and clients can create these collaborations through diverse methods Some commentators suggest highly political efforts, focusing on "individual and collective client acts of selfdetermination in order to broaden social and economic forms of democracy "168 These efforts would center on organizing, mobilizing and education 169 Others focus on examining and critiquing the system in developing strategies and approaches in order to stimulate change on a consciousness level 170 This notion is referred to as "lawyering in the third dimension" and emphasizes raising the client's consciousness in order to obtain a clearer picture of the problems needing solving and appropriate solutions.' ' Finally, others suggest teaching self-help and lay lawyering to empower clients to help themselves in traditionally legal contexts 72 As one Teach, supra note 111; White, Collaborative Lawyering, supra note 72; Lucie E White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U REV L & Soc CHANGE 535 (1987-88); Lucie E White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs G., 38 BuFF.L REV (1990) 166 See Bellow, supra note 143, at 302-03 167 See Richard D Marsico, Working for Social Change and PreservingClient Autonomy: Is There a Role for "Facilitative" Lawyering?, CLINICAL L REV 639, 654 (1995) 168 Alfieri, Community, supra note 165, at 1762 169 See Alfieri, Antinomies, supra note 165, at 665, 694-95 170 See White, CollaborativeLawyering, supra note 72, at 157-58; White, To Learn & Teach, supra note 111, at 761-62 171 See White, To Learn & Teach, supra note 111, at 761 This is a process in which small groups reflect together upon the immediate conditions of their lives The groups first search their shared reality for feelings about that reality that have previously gone unnamed They then attempt to re-evaluate these common understandings as problems to be solved They collectively design actions to respond to these problems and, insofar as possible, to carry them out They then continue to reflect upon the changed reality, thereby deepening their analysis of domination and their concrete understanding of their own power Id This methodology is intended to help subordinated communities emancipate their consciousness from internalized oppression, helping bring individual techniques of enduring and confronting their common domination to the surface See id 172 See LoPEZ, supra note 165, at 70 2000] LAWYERING FOR SOCIAL CHANGE 1895 author posits, "[e]mpowered clients can begin to speak in their own voice - and to solve their own problems - without relying exclu- sively on the advocacy of lawyers."1 73 Alliances formed in an effort to bring about social change create more personal bonds and thus view the lawyer and client as partners rather than as hero and victim 174 Employing some form of collaborative lawyering in a political lawyering context serves to both avoid concerns of lawyer domination and to build a stronger grassroots community Responses to Emotional Concerns The claim that emotion clouds the political lawyer's ability to be a zealous advocate 175 sells lawyer-activists short Partisanship on the part of a lawyer does not inherently eradicate the lawyer's ability to examine both sides of a legal issue The moral activist model of lawyering not only permits personal connection to the lawyer's work, but requires it.176 In addition, it is not possible for any person to completely separate emotion and rationality 177 Emotional detachment is not a prerequisite for moral lawyering 178 Requiring this measure of separation removes the moral impetus for pursuing the work Further, having an emotional commitment to the cause for which the lawyer is working can benefit the client Being thus motivated, or the lawyer is likely to be an even more zealous advocate on his 179 her client's behalf Part of a lawyer's function is to be partisan This partisanship does not automatically de-legitimize the lawyer, as Polikoff claims.1 80 Working for a cause to which the lawyer is morally dedicated is wholly legitimate Angelo N Ancheta, Community Lawyering, 81 CAL L REV 1363, 1374 (reviewing Lopez, supra note 165) See Bellow, supra note 143, at 303 See supra text accompanying notes 130-132 See supra text accompanying notes 27-38 See MARY FIELD BELENKY ET AL., WOMEN'S WAYS OF KNOWING: THE DEVELOPMENT OF SELF, VOICE, AND MIND 134 (1986) (examining the idea of constructive knowledge as the combination of rationality and emotion, as well as the integration of objective and subjective knowledge); see also CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT 69 (1989) (recognizing that moral judgments can be tied to einotion and reasoning) 178 See Sisak, supra note 16, at 2764-65 (citing Carol Gilligan, Moral Orientation and Moral Development, in WOMEN & MORAL THEORY 19, 30-31 (Eva Feder Kittay & Diana T Myers eds., 1987)) 179 See AUERBACH, supra note 15, at 270 (referring to the position of Edgar and Jean Cahn) 180 See supra text accompanying notes 126-129 173 (1993) 174 175 176 177 1896 FORDHAM URBAN LAW JOURNAL [Vol XXVII Responses to Democratic Objections In response to the democratic objections to political lawyering, the generally recognized exception to upholding the will of the majority is when that will infringes upon individual rights, particularly those of a minority group 18 The policies made by the courts are therefore not overt law making, but protection of minority viewpoints z In NAACP v Button, 83 Justice Brennan's majority opinion noted that "collective activity undertaken to obtain meaningful access to the courts [is] a fundamental right under the First Amendment to the U.S Constitution."'' 84 The Court held: In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country It is thus a form of political expression Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts And under the conditions of modem government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.' 85 Further, this notion defeats the assertion that a lawyer's job is merely to apply the rules and resolve conflicts under them 86 Justice Brennan acknowledged that in order to change the rules of a system, one may have to get inside that system, and this ability to gain entry is exactly the kind of access lawyers have to the legal system.' 87 Additionally, the preamble to the ABA Model Rules of Professional Conduct states that: 181 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358 The American system of government is built on two basic, counterbalancing principles: 1) that the majority of the people, through democratically elected representatives, governs the country and 2) that the power of even a democratic majority must be limited to insure individual rights In every era of American history, the government has tried to expand its authority at the expense of individual rights The American Civil Liberties Union exists to make sure that doesn't happen, and to fight back when it does Guardian of Liberty: American Civil Liberties Union, supra note 64 182 See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358; see also Julius L Chambers, Thurgood Marshall's Legacy, 44 STAN L REV 1249, 1249 (1992) (noting that Marshall believed that the courts were the "protectors of the powerless" (citing Payne v Tennessee, 501 U.S 808, 856 (1991) (Marshall, J dissenting))) 183 371 U.S 415 (1963) 184 Chambers, supra note 182, at 1250 185 Button, 371 U.S at 429-30 186 See supra text accompanying notes 137-139 187 See Button, 371 U.S at 429-30 2000] LAWYERING FOR SOCIAL CHANGE 1897 [a]s a public citizen a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession A lawyer should be mindful of should help deficiencies in the administration of justice and 88 the bar regulate itself in the public interest It contends that lawyers play a crucial role in preserving society and that the realization of this role demands awareness by lawyers of their position in the legal system.' Finally, the very monopoly retained by lawyers on the provision of legal services makes it all the more crucial that lawyers continue to work for social justice, championing both under-represented people and ideas Lawyers are the only people who can ensure that the courts act to protect those whose rights are infringed It thus becomes clear that lawyering for social change is a legitimate expression of the democratic protection of the marketplace of ideas and the rights of those who face unfair treatment because they belong to a minority group, express unpopular opinion or are otherwise excluded from the political process B - Contextual Lawyering as a Methodology for Social Change The Social Engineering/Moral Activist Model as Prototype' 90 The Social Engineering/Moral Activist Model ("SEMA Model") most accurately addresses the issues involved with lawyering for social change This model has its roots in moral activism and incorporates a broad range of theoretical and methodological approaches to the work of lawyering for social change Because this model is based in moral activism, it provides both a personal moti188 Model Rules, supra note 13, Preamble, § 189 Id Preamble, § 12 190 This Note combines the notions of social engineering and moral activism to portray this model because neither image alone encapsulates the motivating source and methodology of these movements Moral activism, as discussed by eminent philosophers, focuses on the moral justification of the lawyer's role See Tremblay, supra note 16, at 11 It requires the lawyer to accept moral responsibility for her actions rather than hiding within the traditional conception of the lawyer's role and to seek justice as a matter of vindicating legal ideals See id at 22-24 (citing LUBAN, LAWYERS AND JUSTICE, supra note 16, at 125; William H Simon, Ethical Discretionin Lawyering, 101 HARV L REV 1083, 1083-84, 1090 (1988)) The moral activist notion's focus on accountability is not mutually exclusive from the governing class notion, however A lawyer can accept moral accountability even when working from an idea that serving the people stems from special duties arising out of privilege That is why the model this Note advocates combines the moral drive of moral activism with the ideals and methodology of social engineering A lawyer employing this model works from a moral base, accepts moral accountability for her actions, and uses the legal machinery at her disposal to work toward that morally derived goal 1898 FORDHAM URBAN LAW JOURNAL [Vol XXVII vation for the lawyer and an ethical imperative to be true to the mission of the legal endeavor Because the SEMA Model incorporates elements of multiple approaches, it enables the lawyer to be responsive to both the needs of the client and the legal undertaking Failure of the Governing Class Model The governing class model1 91 promotes a hierarchical, unrealistic ideal that going to law school and practicing the law grants lawyers a measure of honed insight above and beyond that of the average citizen Further, it posits that this advanced ability in decisionmaking elevates lawyers in society and therefore creates a duty for lawyers to serve the general public These notions not truly reflect today's cadre of lawyers Law school certainly equips lawyers with some of the keys to open the doors of the legal system, but this knowledge is entirely unrelated to a higher ability to make judgments It simply teaches students what legal mechanisms must be used to fight certain legal battles In addition, most lawyers not necessarily associate a duty to perform pro bono work with being a member of the privileged legal profession 192 The participation of lawyers in pro bono services to the poor is extremely low According to surveys conducted at the beginning of the 1990s, approximately eighty percent of the bar 193 engages in no pro bono activity Further, none of the definitions of lawyering for social change discussed in this Note 194 fit within the governing class ideal They all involve moral determinations as a starting point, such as what the best life is for humans, whether there is value in fighting the status quo and in representing the voiceless, and whether value exists in equality These definitions involve moral motives rather than dutiful ones These notions not require special judgment, but they encourage using legal tools to work for moral causes 191 See supra notes 15, 18-26 and accompanying text (discussing the governing class conception of lawyering) 192 Some lawyers see a duty arising out of the monopoly lawyers have on the legal system See supra text accompanying notes 145-151 193 See Tigran W Eldred & Thomas Schoenherr, The Lawyer's Duty of Public Service: More Than Charity?, 96 W VA L REV 367, 389-90 (1993) (citing A.B.A CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, 1990 DIRECTORY OF PRIVATE BAR INVOLVEMENT PROGRAMS 146-47 (May 1990); COMMITrEE TO IMPROVE THE AVAILABILITY OF LEGAL SERVICES, FINAL REPORT TO THE CHIEF JUDGE OF THE STATE OF NEW YORK (April 1990)); Steven Wechsler, Attorneys' Attitudes Toward Mandatory Pro Bono, 41 SYRACUSE L REV 909 (1990)) 194 See supra text accompanying notes 3-11 20001 LAWYERING FOR SOCIAL CHANGE 1899 Law as a Reflection of Social Values The definitions of political lawyering all point to the importance of working for a substantively better society 195 They establish the meaning of lawyering for social change firmly within the SEMA Model, as the lawyer works to alter the social order to reflect the values to which she is morally committed These definitions suggest that the use of legal tools to work for the moral good is the ultimate goal of lawyering As a result, the SEMA Model serves to legitimize the practice of working for social change Additional Client Safeguards Within the SEMA Model The SEMA Model provides an additional way to address concerns regarding lawyer domination of clients The issue of elevating the lawyer's political goals over the client's individual goals loses relevance when the lawyer and client engage in a relationship of full disclosure and honesty 96 Because the lawyer has a personal investment in the success of the pursuit, the lawyer has an incentive to try to establish the parameters of the representation in advance in order to prevent such a scenario.197 Once potential con195 See Esquivel, supra note 16, at 329-30 (arguing that "procedure-based conceptions of justice fail to provide an adequate framework for public interest law because the pursuit of a substantively better society is an essential component of any movement for legal reform or enforcement of pre-existing rights") 196 See, e.g., Model Rules, supra note 13, Rule 1.7(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consults after consultation Id (emphasis added); Model Rules, supra note 13, Rule 1.7 cmt ("Consideration should be given to whether the client wishes to accommodate the other interest involved."); Rule 1.8(f) (noting that a lawyer may be paid by a source other than the client so long as the client knows about this arrangement and consents and so long as the arrangement does not compromise the lawyer's independent professional judgment); Model Code, supra note 1, DR 5-107 (allowing the lawyer to be paid by a third party so long as the client consents after full disclosure); ABA Canons, supra note 13, Canon ("It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts.") (emphasis added) 197 See, e.g., Model Rules,.supra note 13, Rule 1.2(c) ("A lawyer may limit the objectives of the representation if the client consents after consultation.") The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client The terms upon which representation is undertaken may exclude specific objectives or means Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent Id cmt 1900 FORDHAM URBAN LAW JOURNAL [Vol XXVII flicts are out in the open, both the client and the lawyer have the right to accept them and continue the representation, or to renegotiate or terminate the representation 198 Thus, the SEMA Model encourages moral discourse, through which the issue of power can be diffused Methodology Under the SEMA Model The causes and ideals embraced by lawyers for social change are extremely diverse; so too are the details, political issues, community concerns and underlying themes associated with them None of these aspects is extricable from another As a result, the best strategy for achieving social change can change from moment to moment The SEMA Model suggests that a lawyer engaged in a political struggle must keep all available options at her disposal and consider a multitude of different ideologies This strategy is the best way to ensure progress Achieving successful social change requires long-term, dedicated, incremental work, utilizing every available tool to address the demands of the situation The conditions of the political climate are not easy to read, and therefore such determinations must be made carefully The political lawyer must monitor social and political sentiment closely to determine which method will be most effective at a given point in time As Hunter notes, "[s]tructural factors determine whether legislation or litigation dominates an equality movement at any given moment: the roles of the state and the market as allies or foes; the nature of the rights being sought; and the broader political climate in each arena."' 199 Further, she indicates that Other factors complicate any brightline distinction between legislative and litigation arenas Discursive communities arise in the interstices of courts, legislatures, and enforcement agencies The lawyers and others who work in, and against, and back and forth between these institutions create and disseminate understandings of the law that then circulate in all those institutions 20 and in the broader society In addition, grassroots work within communities, negotiations with administrative agencies, public education and use of the media, and coalition-building are all additional effective means of addressing social needs To limit the work of a political lawyer to a particular 198 See supra notes 28-29 and accompanying text 199 Hunter, supra note 50, at 1013 200 Id at 1014 2000] LAWYERING FOR SOCIAL CHANGE 1901 genre would effectively tie her hands The SEMA Model encourages the lawyer to use all of the tools at her disposal to reach the end goal CONCLUSION The work of a lawyer for social justice is some of the noblest work that can be done It provides underrepresented people and ideas with a voice in the legal arena Political lawyering works to ensure that our legal system protects the rights of all Even the ethics codes recognize the importance of doing this work Rules of law are deficient if they are not just, understandable, and responsive to the needs of society If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law He should encourage the simplification of laws and the repeal or amendment of laws that are outmoded.2 °1 Throughout their endeavors, political lawyers should be morally engaged and accountable Morality-based social engineering results in vibrant, creative enterprises, as lawyers work to further the goals they have deemed morally worthy Whether through litigation, public education seminars, rallies, lobbying or writing for scholarly journals, the work of a lawyer for social justice is never done But it is always crucial 201 See Model Code, supra note 1, EC 8-2 4AS ... work for the greater good THE LAWYER'S ROLE AND TECHNIQUE IN WORKING FOR SOCIAL CHANGE General definitions of the endeavor of lawyering for social change not really explain why working for social. .. This Part examines the various arguments for and against lawyering for social change A Opponents of Lawyering for Social Change Opponents of political lawyering raise two main contentions One... and Methodologies of Lawyering for Social Change The techniques employed in lawyering for social change vary greatly One achieves success with a multitude of strategies and efforts This section